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Showing 20 posts in Air.

Section 612 of the Clean Air Act (“CAA”) requires that manufacturers replace substances that have been determined to deplete the stratospheric ozone layer with alternatives that do not have the same effect. Section 612 further directs EPA to develop a list of safe substitutes and a list of prohibited substitutes. Hydrofluorocarbons (“HFCs”) were on the safe substitutes list until 2015, when EPA moved many of them to the prohibited substitutes list.  EPA asserted that this change required manufacturers who had been using HFCs to replace them with other substances from the safe list.  The 2015 Rule was challenged, and on August 8, 2017, in Mexichem Fluor Inc. et al., v. U.S. Environmental Protection Agency, No. 15-1328, the D.C. Circuit vacated the 2015 Rule to the extent that it required manufacturers to cease using HFCs as a replacement for ozone-depleting substances.  Read More »

UPDATE: 

This past Thursday, the U.S. Court of Appeals for the District of Columbia Circuit delayed for two weeks its mandate which required the U.S. Environmental Protection Agency to lift its 90-day stay on portions of its methane rule for new oil and gas infrastructure.  The Court issued the mandate after determining that the EPA lacked authority under the Clean Air Act to issue the stay on the Obama-era regulations as further discussed in the original blog post below.  The order delaying the mandate indicates that the Court is providing EPA with time to “determine whether to seek panel rehearing, rehearing en banc, or pursue other relief” with respect to the mandate.  Thus, the methane rule is again on hold for the next several weeks while EPA decides whether and how to challenge the Court’s lifting of the 90-day stay.     

ORIGINAL POST:

Last week, the U.S. Court of Appeals for the District of Columbia Circuit struck down a 90-day stay imposed by the U.S. Environmental Protection Agency on portions of its methane rule for new oil and gas infrastructure, finding the agency lacked authority under the Clean Air Act to issue the stay. Clean Air Council v. Pruitt, No. 17-1145 (D.C. Cir. July 3, 2017).  The methane rule, which establishes “New Source Performance Standards” for fugitive emissions of methane and other pollutants by the oil and natural gas industries, was finalized in June 2016 by the Obama administration.  Notably, the Court’s 2-1 decision puts back into effect the June 3, 2017 deadline for regulated entities to conduct an initial monitoring survey to identify leaks from equipment. Read More »

In the recent decision of Cole v. Marathon Oil Corporation, Case No. 16-10642 (E.D. Mich. Oct. 25, 2016), a district court in the Eastern District of Michigan dismissed, in its entirety, a putative class action lawsuit against a refinery operated by the Marathon Oil Corporation (“Marathon”).  The court dismissed two of the complaint’s three common law claims as time-barred under Michigan law because the complaint failed to plead a “plausible” basis for the court to infer that the claims accrued within the limitations period, and the third cause of action, strict liability, was dismissed on the ground that it is not an independently-recognized cause of action in Michigan.  The decision suggests that, at least under Michigan law, plaintiffs in tort cases must allege more than mere ongoing harm when the allegations on the face of the complaint do not anticipate and provide a plausible basis to avoid an obvious, although unstated, statute of limitations problem. Read More »

Several years ago we reported on Community Action & Environmental Justice v. Union Pacific Corporation, in which a California District Court held the dispersion into the air of particulate matter that reaches the ground or water did not constitute a “disposal” subject to RCRA but, instead, was subject to regulation under the Clean Air Act.  That District Court opinion was affirmed in 2014, in Community Action & Environmental Justice v. Union Pacific Corporation, 764 F.3d 1019 (9th Cir. 2014).  Yesterday, in the case of Pakootas v. Teck Cominco Metals, No. 15-35228 (9th Cir. July 27, 2016), the Ninth Circuit expanded this analysis of the relative roles of our environmental laws by holding that a party who disperses air pollutants that eventually settle into the ground or water are not arrangers liable under CERCLA as they have not “disposed of” hazardous substances under the Act. Read More »

Last week, the 10th Circuit Court of Appeals affirmed dismissal of a Sierra Club citizen suit against a coal-fired power plant for an alleged permitting violation of the Clean Air Act, finding that the Sierra Club’s claims were time-barred.  In the case, Sierra Club v. Okla. Gas & Elec. Co., No. 14-7065 (10th Cir. March 8, 2016), the court held that the Sierra Club’s claims for civil penalties were statutorily time-barred because they were brought more than five years after the power plant began its unpermitted modification of a boiler, an action which the Sierra Club claims violated the Prevention of Significant Deterioration (PSD) program under the Clean Air Act.  The court also affirmed dismissal of the group’s claims for injunctive and declaratory relief because those legal claims were predicated on the same facts as the time-barred civil penalties.  The court’s interpretation of the statute of limitations as applied to the PSD program is consistent with a 2011 district court decision in the 3rd Circuit, United States v. EME Homer City Generation L.P., et al., which we reported on here. Read More »

On Friday, the Pennsylvania Superior Court issued a non-precedential opinion that affirmed a trial court’s order denying objections filed by natural gas drilling company, Range Resources-Appalachia, LLC, to a subpoena issued to one of its engineering consultants, URS Corp. The case, Haney v. Range Resources-Appalachia, LLC, et al., No. 2012-3534, involves personal injury and property damage claims filed by a group of residents that live near Range’s Yeager natural gas drilling site in Washington County, Pennsylvania.   Read More »

Last week, in the case of Maroz v. Arcelormittal Monessen LLC, 2015 U.S. Dist. LEXIS 140660 (W.D. Pa. Oct. 15, 2015), a judge of the Western District of Pennsylvania declined to dismiss a proposed class action in which residents living near ArcellorMittal’s coke plant in Monessen, Pennsylvania alleged that noxious odors and air particulates from the plant polluted their properties.  After allowing the residents to amend their original complaint, U.S. District Judge Arthur J. Schwab found that the residents adequately pled the state common law tort claims for private nuisance, negligence, and trespass, despite the judge’s acknowledgement that there was “not a large number of detailed facts” set forth in the amended complaint.   However, the Court did dismiss claims for public nuisance and punitive damages. Read More »

An issue that insurers and industry have grappled with is whether a company can obtain environmental insurance coverage for costs to address violations of the Clean Air Act, when the costs at issue are aimed at curbing future air emissions, rather than remediating emissions that have already occurred.  Last week, one federal judge in Louisiana answered that question in the affirmative in La Gen Louisiana Gen. LLC, et al. v. Illinois Union Ins. Co., Dkt. No. 3:10-cv-00516 (M.D. La., Aug. 5, 2015).  Read More »

Last summer we reported on Bell v. Cheswick Generating Station, 903 F. Supp. 2d 314 (3rd Cir. 2013), a Third Circuit decision which held that the Clean Air Act does not preempt state law claims for personal and property damage caused by air pollutants.  And in March, we noted, not unsurprisingly, that defendant GenOn Power had filed a Petition for Cert to the U.S. Supreme Court.  On June 2, that Petition was denied, which may have been the impetus for the Supreme Court of Iowa to release its decison in Freeman v. Grain Processing Corp., No. 13-0723 (June 13, 2014), holding that neither the Clean Air Act nor Iowa's analogous state act pre-empted similar state law claims.  The decision is a hefty one, providing a historical overview of the Clean Air Act and preemption law and an in-depth discussion leading to the Court's final determination.  Put this one aside for one evening when you're sitting in the recliner with a glass of wine at your side.   

This summer, we reported on the Third Circuit’s decision in the Bell v. Cheswick Generating Station case, which held that the federal Clean Air Act (“CAA”) does not preempt state common law tort claims in a putative class action filed by over 1,500 residents complaining that the operations of GenOn Power Midwest, L.P.’s (“GenOn’s) coal-fired electric generation station constituted a nuisance under Pennsylvania common law.  Read More »